UNDT/2024/038, Siddique
The main issue for the Tribunal’s consideration in this case related to whether the abolishment of the Applicant’s post leading to the non-renewal of his fixed-term appointment was lawful.
The Tribunal defined the issues to be examined in the present case as follows:
Whether the restructuring was genuine;
The evidence on record showed that the restructuring was done within the framework of the 山Secretariat-wide transition of Enterprise Information and Communication Technology (“ICT”) services to the cloud. ESCAP made strategic changes to implement this new approach, leading to the restructuring of IMCTS.
Concerning the Applicant’s contentions to challenge the restructuring, the Tribunal found that the decision of the Chief of IMCTS to assign the Applicant’s former functions associated with IT security and IT cost recovery to other staff members at the General Service level was not arbitrary. It also determined that the Administration was not obliged to consult with the Applicant during its restructuring exercise.
Accordingly, the Tribunal found that the Applicant failed to demonstrate that the restructuring was not genuine or improperly motivated.
Whether the reason provided for the non-renewal decision was lawful and supported by the facts;
Based on the evidence on record, the Tribunal found that the Applicant’s appointment was not renewed due to the abolishment of his post as conveyed to him by the Chief of IMCTS at a meeting held on 19 October 2022 and, in writing, on 20 October 2022. The record showed that the rationale for the abolishment of the Applicant’s post was the redundancy of his functions due to the 山Secretariat-wide transition of ICT services to the Cloud Strategy.
Therefore, the Tribunal found that the reason provided for the non-renewal decision was legitimate and supported by the facts.
Whether the alleged procedural irregularities rendered the non-renewal decision unlawful;
The Tribunal examined the Applicant’s allegations in this respect and concluded that the Applicant failed to demonstrate that the contested decision was unlawful.
In particular, the Tribunal noted that the present case is not a case of termination, but a case of non-renewal of the Applicant’s fixed-term appointment. As such, the obligation under staff rule 9.6(e) to make reasonable efforts to retain staff members whose appointments are terminated as a result of the abolition of a post or the reduction of staff did not apply to the Applicant.
Whether the Applicant is entitled to any remedies;
Having found that the Applicant failed to demonstrate that the contested decision was unlawful, the Tribunal found no basis for the remedies pleaded for in the application.
In view of the foregoing, the Tribunal decided to reject the application in its entirety.
To abolish the post the Applicant encumbered and, consequently, not to renew his fixed-term appointment beyond 30 June 2023.
A fixed-term appointment does not carry any expectancy, legal or otherwise, of renewal under staff regulation 4.5(c) and staff rule 4.13(c) and expires automatically, without prior notice, on the expiration date specified in the letter of appointment pursuant to staff rule 9.4.
The Organization has the right and power to restructure some or all of its departments or units where it considers it necessary to meet organizational needs and priorities. Such restructuring may justify the termination of employment on grounds of operational requirements. The abolition of a post resulting from a reorganization exercise usually constitutes a valid reason for not renewing a staff member’s fixed-term appointment (see Nastase 2023 UNAT-1367, para. 24).
There is, however, a duty for the Administration to act fairly, justly, and transparently in dealing with staff members during a restructuring exercise (see Abdeljalil 2019-UNAT-960, para. 19).
Where restructuring is the reason for non-renewal of a fixed-term contract, the role of the Dispute Tribunal is to review whether the administrative discretion to restructure was conducted under relevant procedures, whether it was properly motivated, and whether the staff member was afforded due process rights.
It is incumbent on an applicant to prove that procedural irregularities played a role in the non-renewal decision (see Porras 2020-UNAT-1068, para. 24; Nouinou, para. 47)